Pakistan Vs India At The ICJ

Apart from adding a fresh dimension to the ceaseless conflict between Pakistan and India that was hitherto waged through media, military and diplomatic means, the Yadhav case at the ICJ is significant for its purely legal value, having raised pressing matters of international law in front of the court for the first time. The issues that the court will be required to address in order to render a judgment have been articulated before on this website and can be summarised as follows;

Can a national security exception be read into Article 36 of the Vienna Convention on Consular Relations which provides the right to consular access and notification for nationals detained abroad?

Does the 2008 bilateral agreement between Pakistan and India fall within the ambit of “supplementing” or “amplifying” the VCCR and thus become applicable to the facts of the case?

This article, spread over two parts, will look to carefully examine the aforementioned issues in light of the relevant provisions of the VCCR, the Vienna Convention on the Law of Treaties, judicial precedents, bilateral agreements on consular access and state practice in corresponding instances where detentions or arrests were made in a national security related charge.

The VCCR and National Security

A visible antinomy between the right to consular access to foreign nationals and the trend of arbitrary, incommunicado detentions based on national security pretenses that violate said right and discard other tenements of procedural propriety has emerged in the post 9/11 era. Countries that previously championed the right to consular access and demanded a blanket application of the principle in all plausible circumstances have participated in the erosion of the very same right based on a broadly interpreted definition of national security. Anti-terrorism laws have been specifically curated by states to provide cover to punitive action by authorities in detaining suspects without any restraint from the obligations of a fair trial and human rights legislation.

However, the original conflict between the detentions of foreign nationals accused of sabotage in a receiving state and the provision of consular access pre-dates 9/11 and can be traced back to the time of the actual drafting of the VCCR. As the negotiations on the final text of the treaty were ongoing in 1963, an American professor on a visit to the USSR was arrested and held incommunicado for two weeks on charges of spying for the US. Once news of the arrest surfaced, the American ambassador to the USSR demanded immediate access to the detained professor. The Soviet administration remained irresponsive and only released Mr. Barghoorn a few days later owing to the personal intervention of President Kennedy. This incident is one of the many instances during the Cold War era where arrests and detentions made on national security grounds led to the preclusion of consular access to the detainee.

Given this background, the question of whether Pakistan can succeed in establishing a national security exception to Article 36 must be approached from two different standpoints. Firstly, did the original drafters of the convention envisage a national security exception to the Article in recognition of the legitimate interests of states in combating espionage and terrorism? Secondly, (if the answer to the first proposition appears in the negative) has a national security expectation to Article 36 subsequently emerged as a result of state practice in the post 9/11 advent and thus established a new norm of customary law in this regard.

Interpreting Article 36

The text of Article 36 does not provide an express exception to national security related detentions in the application of the provision. In fact, paragraph (b) of the section explicitly states that on request of the national of the sending state, notification must be given to the sending state’s consular post if “a national of that state is arrested or committed to prison or to custody pending trial or is detained in any other manner”.

Rules of treaty interpretation are provided for in Article 31 of the Vienna Convention on the Laws of Treaties, which reads that a treaty shall be interpreted in “accordance with the ordinary meaning to be given to the terms” and in light of its “object and purpose”. The phrase “detained in any other manner”, interpreted according to the simple meaning of its words connotes that no distinction is to be made between different forms of detention and thus the right to consular access applies in all plausible circumstances of arrest. Furthermore, the “object” and “purpose” of the treaty can be derived from Article 5 of the VCCR which provides that the treaty intends to implement the core functions of a consul in a receiving state by “protecting in the receiving state the interests of the sending state and of its nationals” as well as “helping and assisting” those nationals. Reading the terms of Article 36 together with the object and purpose of the treaty thus further asserts the claim that the rights enshrined within were intended to be inalienable.

Subsequent state practice and agreements also play a vital role in treaty interpretation under Article 31. A more comprehensive review of both matters will form the subject of parts 2 and 3 of this article where the international customary law in relation to consular access and the relationship between the VCCR and bilateral conventions will be considered. For current purposes, however, it should suffice that while around 50 consular-access related treaties have been concluded since the VCCR, most are mainly concerned with supplementing the “without delay” terminology of Article 36 and establishing a timeframe for consular notification. None of the treaties entails a national security related exception to the provisions of the VCCR. Furthermore, even multilateral conventions addressing terrorism-related offences strictly adhere to the spirit of Article 36 and carry that foreign nationals shall be entitled to “communicate without delay” with their consular representatives in the event of arrest or detention.

State practice has also been largely congruous with an indiscriminate application of Article 36 regardless of the nature of detention. A case in point would be the three American hikers arrested by Iranian authorities on charges of espionage during the height of tensions between the two countries. Consular access was provided to the Swedish Embassy in Iran which represented US interests in the country at the time of the incident. In a similar incident, British and Canadian diplomats were allowed access to four of their nationals accused of terrorism in Yugoslavia in 2000.

Notwithstanding the visibly transparent nature of Article 36, the lack of qualifying language may lend itself to some ambiguity regarding its scope. However, a recourse to Article 32 of the VCLT by the court would work to dispel any such misgivings about the wide and all-encompassing effect of Article 36. Article 32 provides the means to confirming the results derived from the application of Article 31 by referring to the “preparatory work of the treaty” and “circumstances of its conclusion”.

At first glance, consideration of the circumstances in which the treaty was concluded could provide Pakistan with grounds to argue that in light of the prevalent practice of denying consular access in security related detentions at the time of drafting, a national security exception must have been intended to underpin its operation. However, a careful examination of the travaux préparatoire would prove pernicious to this line of argument.

The initial draft articles submitted for scrutiny at the United Nations Conference on Consular Relations contained a number of provisions that were either omitted or altered in the final text of the VCCR due to their perceived ambiguity. One such provision was paragraph 1(a) of the proposed Article 36 which provided that officials of a consulate shall be free to have access to their nationals in “appropriate cases”. Reservations were raised by delegates on the “unduly vague” nature of the phrase “appropriate cases”. The present Indian representative Mr. Das Gupta noted that the use of such language would restrict the functions of consular service as it would then be required to determine what constituted an appropriate case. These sentiments were echoed by British delegate Mr. Evans who asserted the need for an unambiguous articulation of Article 36 and questioned who would have the prerogative to decide as to the scope of “appropriate cases.” The amendment to remove the disputed phraseology was subsequently approved and thus the apparent caveat of appropriate cases did not feature in the concluded version of the treaty.

This emphasis on a clear and unequivocal wording of Article 36 is emblematic of the desire of its original writers to avoid the curtailment of its effect by providing states with a pretext to deny consular access in particular circumstances. Certainly, the opposite would have occurred if the article was intended to entail a national security exception and allow states a margin of appreciation in the application of the provisions.

Further indications that Article 36 was not intended to discriminate amongst different forms of detention can be found in the treaty’s drafting history. The issue of consular notification did not feature in the initial draft articles proposed by the Special Rapporteur on consular immunities and was originally raised at the International Law Commission (ILC) debate on the draft articles by English jurist Sir Gerald Fitzmaurice, who proposed to include an Article 30 which would enshrine the right to immediate consular notification and access for foreign nationals arrested abroad. The sponsor considered that the Article would be the codification of the prior established norm of customary international law which allowed a sending state access to its nationals who have been detained or arrested in the receiving state.

The amendment was welcomed in principle by the members of the ILC, with concerns only being raised as to its proposed ambit. The Special Rapporteur, Mr. Zourek, commented that the amendment went too far in its effect, as the requirement of consular notification “without delay” would conflict with many national laws which allowed for a period of incommunicado detention. The view was shared by few of the others present, who considered that the sovereignty of states would be impeded if the amendment was adopted in its current form. These reservations were addressed by Commissioner Edmonds of the United States who expressed surprise at the number of objections raised to the proposal and replied that “the fact that, under the laws of some States, it was possible to isolate an accused person from his own lawyer was all the more a reason to safeguard the right of his consul to visit him.” It was also noted by the members present that owing to the lack of knowledge regarding the language and laws of the receiving state a foreign national found himself in an inherently more difficult situation than a national of the receiving state at the time of arrest and thus an exception to municipal law should be made an immediate consular access guaranteed.

The discussion eventually led to the language of the proposal being amended as to requiring the consul to be notified of the arrest or detention of a national without “undue delay” in order to allow for “cases where it is necessary to hold a person incommunicado for a certain period for the purposes of the criminal investigation.” This amendment to the proposal was subsequently challenged at the conference on consular immunities with the Special Rapporteur defending the “undue delay” terminology by citing instances of espionage where a state may want an initial period of isolation with the detainee. The fact that this explanation was rejected by the delegates of the conference and the draft was amended by deleting the word “undue,” in order to avoid the implication “that some delay was permissible” in the consular notification is extremely telling. It conveys that the drafters of the convention consciously avoided any implication of a national security exception to Article 36. Even a delay in consular notification was considered unacceptable. It then becomes evident that an overall exception to national security related detentions was in no way intended during the drafting of the convention.

The Emergence of a New Custom?

The aforementioned analysis goes to convey that Pakistan will find it difficult to establish that a national security exception was intended to form part of the operation of Article 36 from the outset. We now explore the question of whether changes in state practice owing to national security concerns since the inception of the treaty, especially since 9/11, have resulted in a new norm of customary law being born to the same effect.

“Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation.”

This definition of a custom in international law is an appropriate precursor to Article 38(1) of the ICJ Statute which enunciates the two-point criteria for the existence of a custom:

i) general practice, and

ii) the acceptance of this practice as law.

State practice is the total aggregate of how states respond to a particular issue or situation. In order to constitute general state practice, the response must be reciprocated by a “generality” of states consistently and concordantly over a period of time.

Whilst examples of consular access being precluded to foreign nationals arrested on charges of espionage and terrorism can be found, these instances remain too few and far between to represent a general practice. In December 2006, Kenyan authorities arrested some 150 individuals from over a dozen countries, ninety of whom were subsequently rendered to Somalia and Ethiopia. One of the detainees was Canadian businessman Bashir Makhtal, who was alleged to have ties to the Ogaden National Liberation Front, a group fighting for the independence of ethnic Somalis in eastern Ethiopia. Canada was subsequently denied consular access to Makhtal for eighteen months. The first counsellor at the Ethiopian Embassy in Ottawa commented that Makhtal’s arrest and trial at a military court was an issue of “national security” for the country, thus implying that Ethiopia reserved the prerogative to deal with the issue of consular access as it pleased.

What is pertinent is that the arrest of a citizen on the charges of allegedly endangering Ethiopian national security did at no point deter the Canadian authorities from seeking consular access, although it was eighteen months before their efforts bore any fruit and consular officials were finally granted an audience with Makhtal. Despite access being eventually granted, the case is a reference to how the pretense of national security has been used by states to abrogate their responsibilities to provide consular access in the past.

An almost identical incident followed between Great Britain and Eretria in 2011 when four British nationals arrested on charges of espionage were denied consular for five months. Again, the British Foreign Office mounted a fierce diplomatic protest, eventually culminating in the Eritrean diplomats in the London being unable to leave the city or the UK. The diplomatic pressure and “direct action” led to the detainees eventually being released and deported, without ever having been allowed consular access.

Going further back to the immediate aftermath of the 9/11 bombings, a nation-wide purge in the US led to the detention of 1,200 foreign nationals, many of whom were held incommunicado without any contact with the outside world. Many states raised strong protests with the US State Department over its failure to notify the sending states of the detention of their citizens and violation of its obligations under the VCCR. The Canadian authorities raised objection over the treatment of a Canadian citizen of Pakistani descent whose detention was not disclosed for three months after his arrest on September 20th. The Yemenis ambassador to the United States commented that the US continued to be secretive about foreign nationals arbitrarily detained, adding that “I’m sure Americans would be concerned if they were treated this way in another country.”

As a matter of fact, the culture of mass or individual detentions violating the VCCR after the treaty’s coming into force pre-dates 9/11. Owing to a period of civil unrest in Latin America during the 70’s and 80’s, many countries suspended constitutional liberties and abrogated compliance with the VCCR. Again, states reacted strongly. In 1976, the US lamented the incommunicado detention and alleged torture of its citizen by Argentina, stating that “nothing in local law can override the requirement to advise the American citizen without delay of that citizen’s right under Article 36(1)(b) relating to access.” It was further emphasised that the primary purpose of the provisions of Article 36 was to shield a national from improper treatment abroad.

The US had previously asserted the importance of early consular access whilst addressing the issue of American citizens detained in Mexico, declaring that “(Early consular access) can go a long way toward guaranteeing the prisoner against mistreatment and forced statements at the time of arrest, along with making available to him information about responsible legal counsel and judicial procedures.”

An analysis of the incidents relayed above elucidates a certain pattern within which the provisions of Article 36 are flouted by states. Firstly, it can be derived that states do sporadically indulge in the violation of their obligations under Article 36 when arrests or detentions are made on charges concerning national security such as espionage and terrorism. However, the same states seldom defend their non-compliance with the treaty by directly citing a national security exception. Even in the case of Bashir Makhtal, the Ethiopian government refrained from expressly stating that Makhtal’s alleged involvement in sabotage relieved the country of its customary law obligation to provide consular notification and access. During the diplomatic stand-off between the UK and Eritrea over the detention of four British men in 2011, the Eritrea government chose to constantly reassert the charges of espionage leveled on the detained nationals but never specifically argued that the presence of such charges formed a legal exception to the provisions of Article 36.

The US response to the protests of several states and family members of the post 9/11 detainees, although belated, did in no way attempt to dilute the all-encompassing nature of Article 36. After repeated protests were launched, the Secretary of State assured Egyptian diplomats that nationals “will be informed of their rights,” and that “Egyptian diplomats will be given access to the detainees.” Again, no indication claiming that national security considerations could form a legitimate exception to the provision of consular notification and access was made. This pattern indicates that whilst states are prone to, albeit rarely, abrogating their responsibility under Article 36 during periods of high unrest or a perceived threat to national security, these omissions are not driven by the belief that such an abrogation is legally permitted. Rather, they occur within dynamics of administrative overreach buttressed by a fragile security situation and political approval under which states are prepared to break international law, but careful not to expressly argue a legal basis for the breach as the establishment of such a rule would impair their own ability to reach nationals detained abroad in the future.

This is further reflected in the apparently contradictory behaviour of the US state department whereby even after the score of incommunicado detentions after the 9/11 bombings, US consulates are directed to immediately lodge a protest via diplomatic channels if an American national was held abroad and subsequent notification and access were not provided within 72 hours. The US state department handbook for law enforcement officials further provides no national security exception for the providence of consular notification and access for foreign nationals in detention, further consolidating the assertion that states defying the provisions of Article 36 in particular circumstances do not do so believing it to be legally appropriate.

Another element of state behaviour that can be derived from the abovementioned incidents is that receiving states tend to pursue their right to access a national detained abroad relentlessly regardless of the nature of the detention. This is a critical factor preventing the formulation of a new customary law as the ICJ has previously held that in order to establish a custom “state practice, including that of states whose interest are specifically affected, should have been both extensive and virtually uniform in the sense of the provision invoked; and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved.” Clearly, as well as a lack of state practice to infer the recognition of a legal exception to Article 36, there was also no question of state practice being “virtually uniform” between all states concerned as no state simply acquiesced to the denial of consular access and registered strong protests each time the right was denied.

Not only is the small sampling of incidents stated above lacking the fundamental belief amongst states that a legal rule according to a national security exception to the requirement of consular notification and access exists, it also falls short of the requirement that state practice shall be reciprocated by a generality of states consistently and concordantly over a period of time. In fact, much more frequent are cases where consular access is provided to foreign nationals even where charges of espionage or terrorism are involved.

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.